ARB protects duty speech, but not investigating duties

The Department of Labor’s Administrative Review Board (ARB) has released eleven (11) decisions issued in July, four (4) of which address substantive law.  That is down from seven (7) substantive decisions issued in July 2009. At this rate, it will be difficult for the ARB to bring its backlog down below two years anytime soon.

In Vinnett v. Mitsubishi Power Systems, ARB No. 08-104, ALJ No. 2006-ERA-29 (ARB July 27, 2010), the ARB made clear that employees are protected when they perform their safety responsibilities too well. The ARB cited long-standing DOL precedent in holding that protected activity is still protected, even if it is part of the employee’s normal job duties. William Vinnett began working for Mitsubishi Power Systems (MPS) in 2004 as a field project engineer. MPS assigned him to assess equipment vibrations at the Palisades Nuclear Power Plant in Michigan. Vinnett reported a variety of concerns about technical errors, procedural violations and damage to a pressurized vessel.  He had to pester his supervisor to discuss these concerns. When he finally got his meeting, he received a warning letter about his performance. When he asked for another meeting a month later, he was fired.“The [Secretary’s] ruling simply forbids discrimination based on competent and aggressive inspection work. In other words, contractors regulated by [the ERA] may not discharge quality control inspectors because they do their jobs too well.”

Both OSHA and an Administrative Law Judge (ALJ) ruled against Vinnett, who did not have a lawyer representing him. The ALJ said that since reporting his concerns was part of his job duties, his reports were not protected by the Energy Reorganization Act (ERA). The ARB disagreed. On p. 11, the ARB says, "there is nothing in the language of the ERA that carves out an exception limiting whistleblower protection based on an employee’s job duties. *** Nuclear safety is encouraged by protecting workers from retaliation because they report safety concerns." Quoting Mackowiak v. University Nuclear Sys., 735 F.2d 1159 (9th Cir. 1984), the ARB adds, “The [Secretary’s] ruling simply forbids discrimination based on competent and aggressive inspection work. In other words, contractors regulated by [the ERA] may not discharge quality control inspectors because they do their jobs too well.” The ARB said that the ALJ had not cited any authority for denying protection to "duty speech." The ALJ could have cited the controversial U.S. Supreme Court decision of Garcetti v. Ceballos, 547 U.S. 410 (2006). In Garcetti though, the high court indicated that its ruling denying protection applied only to claims against government officials under the First Amendment, and it did not apply to rights under whistleblower protection laws. The ARB does not mention Garcetti in this decision.

On page 13, the ARB made some helpful observations about discovery.  It noted that Vinnett did not have an attorney, but did complain about not getting all the information he wanted from the company.  The ALJ denied him permission to make a motion to compel that discovery. The ARB asked the ALJ to reconsider that decision, or directly order the company to provide requested documents like the outage log, weekly reports, Vinnett’s personal log, and not to just accept the employer’s word about which parts were relevant. The ARB makes clear that complainants are entitled to a fair opportunity to compel discovery before an ALJ issues summary judgment.

In Bucalo v. United Parcel Service, ARB No. 08-087, ALJ No. 2006-TSC-2 (ARB July 30, 2010), the ARB affirmed a dismissal of Samuel Bucalo’s complaint under the Toxic Substances Control Act (TSCA) and the Surface Transportation Assistance Act (STAA). Bucalo has worked for UPS since 1979 in Sharonville, Ohio (near Cincinnati). He is also a union steward for the International Brotherhood of Teamsters, Local 100. In 2005, a coworker asked him to investigate a mercury spill. Bucalo testified that he was concerned about the safety of other employees (which would point to the weak protections of Section 11(c) of the OSHA Act, and not toward the environmental protections in TSCA). Bucalo found a UPS engineer who showed Bucalo how the affected area had been blocked off by caution tape. The next day, management suspended Bucalo and escorted him off the premises for creating a "chaotic situation." (What whistleblower complaint does not create a "chaotic situation" in the eyes of management?) UPS decided Bucalo should receive a one day suspension for this offense. Three days later, Bucalo performed an inspection of the premises when a UPS supervisor ordered him to leave.  Bucalo insisted he had a right to investigate, and an argument erupted before Bucalo finally left.  UPS fired Bucalo that day for failing to leave when first asked.

The ARB agreed with the ALJ that Bucalo’s activities were on behalf of employee safety and not the environment, and are therefore not protected by TSCA. This holding fails to consider how employee safety activities can also touch on environmental safety. Moreover, it is the employer’s statement of mind that makes retaliation unlawful, not the employee’s. Brock v. Richardson, 812 F.2d 121, 123-25 (3d Cir. 1987); Willy v. Coastal Corp., 85-CAA-1, SOL D&O at 13-14 (June 1, 1994) (holding that employer’s mistaken belief about protected activity is sufficient to make retaliation unlawful). If UPS was afraid that Bucalo’s investigation could lead to environmental enforcement activity, that should be sufficient to provide TSCA protection. The ARB held that UPS fired Bucalo for failing to follow the orders to leave, and not for protected activity. The "filed or about to be filed" language in the environmental laws also appears in the anti-retaliation prohibition of the False Claims Act, and in that context protects employees who are collecting information about possible fraud "before they have put all the pieces of the puzzle together." See, e.g., U.S. ex rel. Yesudian v. Howard University, 153 F.3d 731, 739-40 (D.C. Cir. 1998). ARB member Wayne Beyer, the only hold-over from the Bush administration, wrote a concurring opinion to emphasize that in his view, reporting a violation is protected, but not asking questions. He reached this conclusion without citing the Yesudian case. Bucalo did not have a lawyer for his DOL case.  Hopefully he will do better with labor-management arbitration. If other whistleblowers have claims arising from retaliation for asking questions, hopefully they will find this cite to the Yesudian case and ask the ARB to change this holding.

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